DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. case No. 351/2019

 Date of Filing:                      Date of Admission:                 Date of Disposal:                

      20.12.2019                             26.12.2019                                  19.04.2022

P R E S E N T         :-  Shri Debasis Mukhopadhyay…………President.

                                :-    Smt. Monisha Shaw …………………. Member.

JUDGMENT / FINAL ORDER

This complaint is filed by the Complainant U/s 12 of the Consumer Protection Act, 1986 (as amended up to date) alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint.

The brief fact of the complaint is that the Complainant Sri Arun Kumar Nayak Wanted to purchase a flat from the Opposite Party No. 1 / Developer, in the name of the company is Amit Construction, having its registered office at SANGAM, A/126, H.B. Town Road No. 8, Sodepur, P.O. Sodepur, P.S. - Khardah Kolkata – 700 110 representative by the Opposite Party No. 2 Sri Amit Kumar Dey, after verbal discussion the Complainant paid to the Oppopsite Party No. 1 and 2 an amount of Rs. 1,00,000/- for booking the flat. After receiving of Rs. 1 lakh from the Complainant the O.P. No. 1 and 2 issued allotment letter to the Complainant on 15/02/2014 for the allotment of one self contained flat, at “Hasi Villa” Apartment at 172, B.C Roy Sarani, P.O. Masunda, New Barrackpore, Kolkata – 700131 measuring an area 825 sq.ft. super built-up on the 2^nd Floor, being Flat No. A-204 (North-East corner), wherein the Opposite Party No. 1 represented by Opposite Party No. 2 requested to the Complainant to complete the rest amount of the said construction in lieu of the balance consideration amount and for signing of sale agreement.

Contd. To Page No. 2 . . . ./

: :  2  : :

C.C. case No. 351/2019

The Complainant stated that after the issuance of allotment letter O.P. No. 2 informed to the Complainant that Flat No. A- 204 (North-East corner) was not available for that reason Flat No. B-204 (South-East corner), at the 2^nd floor in the same building shall be allotted to the Complainant.

          The Complainant further stated that he entered into an agreement for sale dated 12^th March, 2014 and the total consideration amount of said flat is Rs. 16,00,000/- along with Rs. 35,000/- for transformer installation cost. As per Complainant’s version that in terms of the said agreement for sale the Opposite Parties were to complete the construction of the said flat in terms of the specification of the said agreement for sale and also bound to register the sale deed of conveyance in respect of the said flat in favour of the Complainant and hand over vacant peaceful possession to the Complainant within 20 months from this date of signing of the said agreement i.e. 12^th March, 2014.

          Complainant further stated that at the time of execution, the Complainant paid to the Opposite Party of an amount of Rs. 1,00,000/- and also paid Rs. 4,00,000/- vide cheque no. 098005 and 098006 dated 12/03/2014 from S.B.I., Subodh Mullick Square Branch, the Complainant paid another two cheques of Rs. 1,00,000/- each vide cheque no. 172905 and 172906 dated 12/03/2014 from S.B.I., Bagmari Branch amounting, the Complainant paid Rs. 1,00,000/- and Rs. 47,000/- respectively vide cheque no. 056626 dated 12/03/2014 from IDBI Bank, C.I.T Road, amounting to Rs. 53,000/- as mentioned in the said agreement for sale.

          Thereafter, Complainant applied for house loan in respect of said flat from Allahabad bank, Khardah branch for an amount of Rs. 5,00,000/- after sanctioning was paid to the Opposite Parties. After that the Complainant paid the balance consideration amount on part basis by cash and by cheque on different dates and the O.Ps issued money receipt in respect of that amount and the Complainant total paid Rs. 13,60,000/- to the Opposite Party No. 1 represented by the Opposite Party No. 2 and they also received of Rs. 31,500/- on 23/07/2016 from the Complainant for the installation of electric meter in the name of the Complainant but nothing needful has been done in regards to that as yet.

          In the year 2018 the Opposite Parties told to the Complainant to complete the plaster work of the interior wall and flooring of the said flat at the cost of the Complainant and at the time of registration the expense borne by the Complainant for the work of completing the plaster work of the interior wall and flooring of the said flat shall be adjusted with the rest amount of the consideration money. As per discussion with the O.Ps, the Complainant has completed the plaster work of the interior wall and flooring of the said flat at his own cost.

Contd. To Page No. 3 . . . ./

: :  3  : :

C.C. case No. 351/2019

On several occasions, the Complainant visited to the Office of the Developer / Proprietor of the Amrit Construction for entire procedure to register the said property in the name of the Complainant. Complainant also stated that at the time of final painting and construction work was going on it was informed by any one that the O.Ps have entered into an agreement for sale with third party in respect of the suit flat.

As per Complainant’s version, the cause of action arose on 12^th March, 2014 when agreement for sale executed by and between the parties and thereafter on and from 1^st January, 2016 the expiry of stipulated period for the delivery of physical possession of the said flat as per agreement for sale. So many times correspondence with the Opposite Parties and lastly on 01.08.2019 the Complainant issued demand notice and also legal notice through his Ld. Advocate.

SCHEDULE OF THE PROPERTY

            A self contained flat, being Flat No. D-204 (South-East Corner), measuring an area of 825 sq.ft. on the second floor, at Holding No. 172, 172/1,172/2, under the New Barrackpore Municipality, wared No.6, Mouza-Masunda, J.L.No.34, R.S. No. 96 under L.R. Khati8an No. 2731, R.S. Dag No. 186/1631, L.R. Dag No. 337 at P.S. Ghola, North 24 Parganas, namely Hasi Vill Appartment situated at 172, B.C. Roy Sarani, P.O. Masunda, Kolkata 700131.

Prayer of the Complainant:-

1. Give a direction to the O.Ps to register the said flat in the name of the Complainant and hand over the vacant peaceful possession in a habitable condition after setting the final payment for consideration amount.
2. Give a direction to the O.Ps to pay to the Complainant of Rs. 100/- per day from 01/01/2016 till date for the harassment, mental agony, inconvenience, frustration suffered by the Complainant.
3. Give a direction to the O.Ps to pay to the Complainant Rs. 20,000/- towards cost of legal proceedings and other expenses.
4. Give a direction to the O.Ps to pay to the Complainant of Rs. 50,000/- towards cost for the unfair trade practice used by the O.Ps.
5. Give a direction to the O.Ps to pay interest @ 18%.

and / or

6. To pass such other order / orders may deemed fit and proper.

The O.P. did not contest by filing W/V or any other documents. According to the record the Complainants issued notice upon O.Ps and the O.Ps had refused the notices on 15/01/2020 and 16/01/2020 but the O.Ps did not turned up to contest the complaint and did not file W/V. On 02/03/2020 vide order no. 03 the case do run ex – parte against the O.Ps.

Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?

2. Whether the Complainant is entitled to get relief / reliefs in this case.

Contd. To Page No. 4 . . . ./

: :  4  : :

C.C. case No. 351/2019

Decision with reasons:-

Considering the facts and circumstances as well as nature and character of this case all the points are interlinked to each other and as such all the points are taken up together for consideration for the sake of brevity and convenience.

On perusal of the materials along with the supporting affidavit related to documents available in the case record as well as hearing of argument by the Ld. Advocate for the Complainant, it is revealed that the Complainant paid an amount of Rs. 13,60,000/- and he paid an amount of Rs. 31,500/- for installation of the Electric Meter.

It is mentioned that the Opposite Parties shall deliver the possession of the said flat from the date of execution of the agreement for sale dated 12/03/2013. But after receiving the amount of Rs. 13,60,000/- paid by the Complainant only but O.Ps did not deliver the peaceful possession to the Complainant. 

 Total flat value to the Developer / O.Ps. Here the status of the OPs / Developer is service provider and the Complainant being a customer of the O.Ps, so the Complainant becomes a consumer as per Consumer Protection Act, 2019.

Hence, for ends of justice:

It is

Ordered

That the instant case being no. 351/2019 be and the same is allowed ex-parte against the O.Ps with cost.

The Complainants, Sri Arun Kumar Nayak, do get a decree of Rs. 10,000/- as compensation and Rs. 3,000/- as litigation cost.

The O.Ps the representatives of Amit Construction are also hereby directed to deliver the Peaceful Possession as per agreement for sale with Completion Certificate within 03 months from the date of the decree.

The O.Ps are also directed to pay the aforesaid decretal amount (i.e. Rs. 10,000 + Rs. 3,000) = Rs. 13,000/- with 6% interest to the Complainant within 03 months from the date of judgment, failing which the Complainant is at liberty to put this decree into execution according to law.

Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

Dictated and Corrected by me

Member

Member                                                                                                         President